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High Court awards care of baby girl to same-sex couple

Natalie Gamble and Elizabeth Isaacs QC (solicitor and leading counsel for the applicant fathers)
The
High Court ruled this week that a same-sex couple should be awarded care of
their baby daughter after a 15 month court battle. In H v S (Surrogacy Agreement) [2015] EWFC 36, Ms Justice Russell decided that it was in the girl's best
interests to live with her biological father and his partner, rather than with
her mother.

The
case was widely headlined in the press as a surrogacy dispute, but the facts
are complicated and it is worth reading the full judgment if you want to get a
feel for what actually happened. At its heart was a dispute between the
mother on the one hand, and the father and his same-sex partner on the other, about
what was agreed before the child was conceived. The couple said that the two
of them were intended to be the main carers and that the mother (who was a
friend of the biological father’s) would have a subsidiary but active role. The
mother vehemently denied this, saying that she had agreed to have a child with
her friend (and not his 'on-off boyfriend') and that she never agreed to hand
the baby over to them. Having heard evidence over 5 days, and viewed
emails between the parties before conception, the court rejected the mother’s evidence
and found that there had been an agreement as described by the couple, who were
in a cohabiting relationship of 10 years at the time of conception. Rather than having a subsequent change of
heart, the court also found that the mother had 'deliberately misled the Applicants in order to conceive
a child for herself' (her two older daughters having been moved to live
with their father, her ex-husband, following protracted court proceedings in a
separate case).

The
judgment sets out how, in a ‘vendetta’
against the couple and a campaign to make the child 'solely her own', the mother then excluded the couple from being
present at the birth, registered the child without naming the father or
involving him in her choice of names, used breastfeeding and her choice of
parenting style to deny and limit contact, denigrated the couple’s relationship
and made 'wholly unsupported'
allegations about drug-taking and sexual conduct in a 'deliberate attempt to discredit H and B in a homophobic
and offensive manner',
maliciously outed the father to his elderly relatives overseas after the court
granted him overnight contact she did not agree with, 'continually disrupted' contact in breach of court orders including
repeatedly taking the child to the doctor or hospital when she was 'not ill or had no more than a cold', had
the baby secretly baptised in breach of a prohibited steps court order (and
then lied about having done it in sworn evidence), and delayed and disrupted the
court proceedings.

The judge said:

'Throughout the proceedings S
has quite deliberately and explicitly sought to portray herself as a victim.
Indeed she describes herself as such and claims that she is discriminated
against as a mother and, more particularly as a breast-feeding mother ... There was never
the slightest indication of a cowed, submissive or victimised person. On the
contrary she conducted herself in a very confident and most assertive manner
throughout. She has sought to impose her will on the court and manage the
proceedings.'

The court's
decision that the girl should live with her father and his partner was not a
punitive one in the light of the mother's conduct, but a recognition that the
mother was unable to prioritise her child's best interests above her own
feelings and agenda. The judge said that the child had already suffered
harm, and was likely to continue to do so if she remained with her mother. It was vital that she be allowed to develop a
good relationship with both her parents and to understand her identity and
place in the world in a positive way. Ms Justice Russell said:

'As she gets older she will
become more aware of, and will be directly affected by, her mother's negative
views about her father and B. These views will affect her own sense of
identity; negatively inform her view of herself and where she fits into the
world. I am forced to conclude that S has shown herself to be unable to
put M first and that she is unable to meet M's emotional needs now and in the long term.'

(Red Book)

The
court found that the father and his partner were ‘child-focused’ and had, in contrast, gone out of their way to
provide the mother with a place in the child's life, continuing to offer
contact more frequently than even the child's guardian had recommended.
The judge found them 'measured'
and said they had showed 'marked empathy
and understanding' for the mother notwithstanding her treatment of them.
The father's partner was 'remarkably
forgiving' and 'when
talking about M he was warm and loving and referred to [the child] as "our
daughter"; she was clearly very important to him'.

Ms
Justice Russell therefore decided that it was in the child's best interests to
live with the couple. She said:

'While to move a young child
from her mother is a difficult decision and is one which I make with regret as
I am aware that it will cause S distress I conclude that H is the parent who is
best able to meet M's needs both now and in the future. It is he who has shown
that he has the ability to allow M to grow into a happy, balanced and healthy
adult and it is he who can help her to reach her greatest potential.'

The
judge ordered supervised contact for the mother, at least initially. This
unusual step was something the court had 'struggled
with' but ultimately concluded was necessary, both due to a real fear the
mother would remove the child to Romania (having done so in breach of court
orders in the past in respect of her older daughters) and to ensure that
contact could not be used by the mother as 'a
means of continuing the contest for ownership of M' which would make
contact a negative experience for the child. The judge said she hoped
that in time this would no longer be necessary, and pointed out that the
fathers still aspired to the mother playing an important role in her child's
life including having contact in a more relaxed environment.

The legal perspective

Pre-conception
and surrogacy agreements are unenforceable under UK law, so the case was never,
at a legal level, about whether the court should uphold the original agreement
between the parties (contrary to what some of the press coverage would suggest).
However, what was agreed between the parties did form an important part
of the factual background necessary to determine the case, and the court said it
was also important for the child that the truth about her origins was resolved.

The
legal issue to be decided was what living and contact arrangements would best
promote the child’s welfare going forward. As in all Children Act cases,
the judge had to weigh up all the circumstances, consider the welfare checklist
and decide what long term arrangements were best. Referring to the Court
of Appeal decision in Re N (2007) – another disputed surrogacy case in which
residence was awarded to the intended parents - the judge said that the test
was: 'Put very simply, in which home is [the child] most likely to
mature into a happy and balanced adult and to achieve his fullest potential as
a human?'

Despite
the media hoopla in response to the case, the decision to transfer main care to
the fathers is not as controversial as it might first appear. It was a transfer of residence in a dispute
between parents, just one of the many welfare-based decisions the family court
make every day.

Wider significance

The
case has, however, sparked an important debate about the future of UK surrogacy
law, which we hope will encourage positive change from what is undoubtedly a very
sad story for all involved. This is in part a result of Ms Justice
Russell’s comment at the very start of the judgment that: 'The lack of a properly supported and
regulated framework for arrangements of this kind has, inevitably, let to an
increase in these cases before the Family Court.'

We
agree that UK surrogacy law is woefully outdated and that, although disputes
like this have to date thankfully been rare, they will inevitably become more
common if we do not give the law more structure and clarity. As the court
intimated, what we need is a proper process for adults to go through which
ensures that those entering into arrangements to conceive a child think through
all the issues carefully and proceed only if there is consensus. In many
US states, including California, parents and surrogates are given psychological
screening, and medical and legal advice before entering into a written contract
which then allows the court to make a pre birth order confirming everyone's
responsibilities before the birth.

We
think it is time for a similar framework in the UK. Had it been in place
already, this dispute would probably never have happened.